Disunity sinks European patent compromise…again

The emblem of the European Patent Office – but a single patent regime seems as far away as ever.

On Monday national governments shelved a compromise solution tabled by the European Commission that would have allowed the creation of a single patent court.

The decision sparked an angry response from the European Commission, the European Union’s executive body, as well as from trade groups including UNICE, which represents Europe’s biggest firms.

“It is unacceptable for the EU to be lagging behind its competitors in the patents field,” said Jerome Chauvin, UNICE’s head of legal affairs in a telephone interview. “It’s frustrating to see the member states of the EU putting the same excuses on the table each time.”

There have been numerous attempts to break the political deadlock in the debate on Europe’s patent regime over the past thirty years. This time round the frustration is deeper because innovation and competitiveness are now supposed to be top political priorities, and no one disagrees that fixing the patent system is essential for improving Europe’s ability to compete.

As Europe continues to squabble over what languages a single European patent should be translated into, and whether or not a pan-European patent court would be better or worse than the 25 national patent courts in the member states, China is ploughing massive investment into research and development and will this year outspend Japan, the world’s second biggest investor in R&D, according to a report released this week by the Organization for Economic Coo-peration and Development (OECD).

'At odds with economic reality'

“In Europe politics is at odds with economic reality,” said Francisco Mingorance, a European affairs expert with the trade group, the Business Software Alliance.

“All the indicators show that the EU could be made a better place if it solved the problem with its patent regime. The problem is that the message doesn’t appear to register with entrenched politicians,” he added.

France and Spain were the main opponents of the commission’s plan to make the Union a signatory to the European Patent Litigation Agreement, a plan by the European Patent Office to create one single patent court to handle all patent litigation in the 31 member countries of the EPO.

The French government opposes the move because the EPLA would be outside of EU jurisdiction and would therefore pose constitutional problems. It wants the EU to stick to its more ambitious, and difficult, aim of creating a single patent for all countries in the EU.

Other countries including Spain supported the French objection for differing reasons, including claims that the existing, fragmented system is cheaper for their local companies that mostly operate inside their home country. Another reason few would admit is that they want to protect their national patent regimes, and the jobs they create for senior civil servants.

Finland, currently holder of the six-month rotating presidency of the EU, has been criticised for pushing for an agreement before preparing member states. “This time round the mess was made by the Finnish presidency,” Mingorance said.

In their eagerness to claim credit for pushing the patents debate forward, the Finnish government “caught the commission off guard and it failed to prepare other countries for the debate. They seem to have upset everybody,” he added.

Consequently on Monday, each national government turned up at the meeting in Brussels with their original fixed positions regarding patents still in place. “The Finns didn’t expect France and Spain to object. You could call it political naivety,” Mingorance said.

Charlie McCreevy, the commissioner who has spent most of this year trying to break the patent deadlock, described the decision taken on Monday by government ministers as a setback.

In an interview with the Financial Times he said he is “pessimistic” of making any meaningful progress in reforming the EU’s patent regime.

“Anything remotely concerning this patent area is fraught with minefields at every turn of the road,” he is quoted as saying.